Theodore v. Delaware Valley School Dist.

761 A.2d 652

Louis THEODORE, Mary Ellen Theodore, and Jennifer Lynn Theodore, individually and Louis Theodore and Mary Ellen Theodore, as the Natural Guardians of the infant Kimberly Ann Theodore, Appellants, v. The DELAWARE VALLEY SCHOOL DISTRICT.

Commonwealth Court of Pennsylvania.

Submitted on Briefs September 13, 2000.

Decided November 6, 2000.

Robert N. Isseks and Alex Smith, Middletown, NY, for appellants.

Stephen S. Russell, York, for appellee.

Before DOYLE, President Judge, COLINS, Judge, McGINLEY, Judge, SMITH, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge.

PELLEGRINI, Judge.

Louis and Mary Ellen Theodore (Parents) and their daughters, Jennifer Lynn and Kimberly Ann Theodore (Students), appeal from an order of the Court of Common Pleas of Pike County (trial court) granting the preliminary objections of the Delaware Valley School District (School District) dismissing their complaint seeking to prevent the School District from testing students under its policy of "Drug Testing and Alcohol Testing for Extracurricular Participation, Driving and Parking Permit Privileges" (Policy 227).

The School District has adopted Policy 227¹ under which all middle and high school students seeking to participate in its extracurricular programs² or obtaining permission to drive to school or park at school (driving/parking privileges) must sign or have a parent sign a contract consenting to the student's testing for alcohol and controlled substances (testing).³ The stated purposes of the testing policy are the prevention of accidents and injuries resulting from the use of alcohol and controlled substances, and discouraging use and providing assistance programs for those students participating in extracurricular programs and students with driving/parking privileges. Because the health care of students is the sole reason for the policy, there are no criminal sanctions, juvenile action or school discipline as a result of the testing.⁴

As to the method of testing, the contract authorizes the School District to collect breath, urine and blood samples from the student for intoxicant testing throughout the course of that year.⁵ The testing of breath is conducted by a certified Breath Alcohol Technician using a breath-testing instrument approved by the national Highway Safety Administration. The collection of urine and blood samples is conducted by trained medical personnel in the nurse's office and then sent to a laboratory which follows the procedures required by the Substance Abuse and Mental Health Services Administration to perform a split sample method of testing.⁶ The student samples cannot be used to test for any medical condition other than the presence of intoxicants,⁷ with any test result showing a breath alcohol concentration of 0.02 or higher⁸ or showing the presence of any level of controlled substances⁹ producing a positive test result.

If a student tests positive, a medical officer¹⁰ first notifies the parents and the student of the result after which they can make a decision to opt out of the activity and receive no further intervention from the School District.¹¹ If the decision is made not to opt out of the activity, the principal and various school officials¹² are notified. Upon notification, the principal is then required to hold a conference with the parents to discuss the results of the testing, and the student is required to participate in a drug/alcohol assessment with a certified evaluator. In addition to participation in the assessment, a student who tests positively for the first time is required to participate in a drug/alcohol assistance program, submit to weekly drug testing for six weeks, receive a suspension from participating in athletics, club events and performances and/or driving/parking privileges for a period of time, and must have a negative retest in order to return to the activity. A student with two offenses is suspended from participation in all extracurricular programs and from driving/parking privileges for one calendar year from the date of the offense and is required to have a negative retest in order to return to the activity. A student with three offenses is barred from all extracurricular competition and from driving/parking privileges for the remainder of his/her years in the School District.

Because of their extracurricular participation in the National Honor Society, Science Olympiad, Scholastic Bowl, tennis, swimming and track, and because they possess driving/parking privileges in the School District¹³ under Policy 227, Students have been subjected to mandatory urine testing to determine if they have used illegal substances. Because Policy 227 was not a generalized search of all students, but requires the testing of only those students who participate in extracurricular activities or possess driving/parking privileges without any individualized suspicion, Students brought an action before the trial court contending that Policy 227 unconstitutionally deprived them of their right to privacy in violation of the prohibition against unreasonable searches and seizures protected by Article 1, Section 8 of the Pennsylvania Constitution, and they sought injunctive relief to prevent the School District from testing students.

The School District filed preliminary objections contending that the complaint failed to set forth a cause of action because the drug testing of students was not unconstitutional as students were entrusted to the care of the School District so they had a lessened privacy interest in avoiding reasonable health measures undertaken by schools. Granting the preliminary objections and dismissing the complaint, the trial court found the drug testing constitutional because students in public schools had a reduced expectation of privacy when engaging in voluntary activities under the control of the school in its role of guardian of students in the school environment, the intrusion was minimal, students had notice of the policy, and the School District had an important interest in protecting the health care of its students. This appeal followed.¹⁴

As they did below, Students contend that Policy 227 unconstitutionally violates their right against unreasonable searches and seizures protected by Article 1, Section 8 of the Pennsylvania Constitution¹⁵ because the testing is conducted without individualized suspicion and limited only to students who participate in extracurricular activities and who have driving/parking privileges. In response, the School District contends that because students traditionally have lowered expectations of privacy in the realm of their health care, the intrusion is minimal, students voluntarily participate in the extracurricular activities with notice of the policy, the government interest in protecting student health care is great, and the testing conducted under Policy 227 is reasonable under Article 1, Section 8 of the Pennsylvania Constitution.

I.

Article 1, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

PA. CONST. Art 1, § 8. "Although Article I, Section 8 of the Pennsylvania Constitution is similar in phraseology to that of the Fourth Amendment of the United States Constitution, ... Article I, Section 8 often provides greater protection since the core of its exclusionary rule is grounded in the protection of privacy while the federal exclusionary rule is grounded in deterring police misconduct ." Commonwealth v. Williams, 547 Pa. 577, 591, 692 A.2d 1031, 1038 (1997). Because Article 1, Section 8 serves as a safeguard of privacy interests, a search by the state must not only be based on a compelling interest, but whether the state's interest justifies a particular intrusion depends, in part, "on whether the state's intrusion will effect its purpose; for if the intrusion does not effect the state's purpose, it is a gratuitous intrusion, not a purposeful one," into the privacy interests of the individual. Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 438, 609 A.2d 796 802 (1992). See also In Interest of M.B., 686 A.2d 877 (Pa.Cmwlth.1996).

It has long been recognized that school students do not have an unlimited right to privacy under the Pennsylvania Constitution because the need to protect all students, ensure school discipline, protect school property and ensure the health care of students reduces a student's expectation of privacy while in the school environment. In re F.B., 555 Pa. 661, 726 A.2d 361 (Pa.), cert. denied, 528 U.S. 1060, 120 S.Ct. 613, 145 L.Ed.2d 508 (1999); Commonwealth v. Cass, 551 Pa. 25, 709 A.2d 350, cert. denied, 525 U.S. 833, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998); Stull v. Reber, 215 Pa. 156, 64 A. 419 (1906). However, because students do not leave all of their privacy interests at the school door, Pennsylvania courts have not abandoned the need in the school setting to analyze whether the school's interests and purposes justify the intrusion based on the specific privacy interest implicated by the search. Cass.

Over the past several years, our Supreme Court has struggled with the privacy interests of students under the Pennsylvania Constitution implicated by a search of students, albeit, unlike here, generalized searches of all students resulting in criminal consequences. In Cass, a case involving the search of school lockers for drugs, our Supreme Court was unable to agree upon a definitive framework for the analysis of the constitutionality of general searches of the student population for contraband under the Pennsylvania Constitution. While there did not appear to be disagreement that such a search was permissible under the Fourth...